Following the introduction of the new television show ‘The Hunted’ on SBS, the topic of intimate images and the offences/consequences associated with their distribution, is again in the limelight. But what does all this actually mean within NSW and on the legal frontier?
Common Offences and Penalties associated with Revenge Porn
- Recording an intimate image without consent (Crimes Act 1900, section 91P)
- $11,000.00 and/or 3 years imprisonment
- Distributing an intimate image without consent (Crimes Act 1900, section 91Q)
- $11,000.00 and/or 3 years imprisonment
- Threatening to record an intimate image without consent (Crimes Act 1900, section 91R(1))
- $11,000.00 and/or three years imprisonment
- Threatening to distribute an intimate image without consent (Crimes Act 1900, section 91R(2))
- $11,000.00 and/or three years imprisonment
- Use Carriage service to menace, harass or cause offence (Criminal Code 2005 (Cwth), s4747.17)
- 3 years imprisonment
What the prosecution must prove in distributing intimate images?
When it comes to the image offences (s91P and 91Q) the prosecution must prove that the images were distributed and/or recorded intentionally AND that this action was done without consent of the victim or in a manner where a person was reckless to obtaining that consent.
For the image offences of threatening to distribute (91R) and the menace harass offence, the prosecution must prove that the person intended to cause or was reckless to the fear that these threats would cause a reasonable person if they were in fact carried out.
It does not matter is if the image actually exists for the purposes of these offences.
What does Consent actually mean when dealing with revenge porn / images?
The idea of consent is bandied around regularly, but it becomes more complicated in these type of offences.
The person/s within the image must ‘freely and voluntarily agree’ to the recording or distribution of the image. Meaning that the image may have been initially taken or sent to another person with consent, a colloquial term for this is, especially amongst teens, is ‘Sexting’. The consent is not a blanket concept for all future use of that image and the consent must extend and/or be of an ongoing nature.
A common example is:
Jason and Jane are in a relationship and Jane sends Jason a sexual image. Jason and Jane break up some months later and Jason sends the image to some of his mates without Jane’s consent.
Jason would be guilty of distribution the image without consent despite the fact that the image came into existence by consent.
Does it differ for minors as victims or offenders?
People under 16 or those that do not have the capacity to consent are taken to have not consented to the recording and/or the distribution of any image.
The distribution, possession, taking of any image of a person under 16 would also be liable to possible charges under child abuse offences, this can occur even if the ‘offender’ is under 16 years old.
Defences to revenge porn
- Consent
- Genuine Medical and/or scientific purpose
- Genuine law enforcement purpose or for legal proceedings
- A reasonable person would consider the conduct of the accused person was acceptable having regard to the circumstances.
What should I do if I have been charged with revenge porn offences?
If convicted of any offence, this is recorded on your criminal record. This existence of a criminal record may affect future employment, travel especially to places like the United States. A conviction for this type of offence, will have a major impact if you ever wish to work with children and/or future employment given the nature of the offences.
It is important to seek legal advice, whether you believed you are guilty or not of this type of offence, and it is important that you get this legal advice as early as possible.
It is important to remember to obtain expert legal advice from a qualified solicitor at the earliest opportunity to see if you may have a defence available to you. Catron Simmons Lawyers can assist you and ensure that your interests are represented.